Appeals court says judge used wrong legal standard in rape acquittal

ELYRIA — A Lorain County judge used the wrong legal standard in acquitting a man accused of rape, according to a ruling by the 9th District Court of Appeals.
Lorain County Common Pleas Judge James Burge used the incorrect standard and granted the acquittal “after refusing to recognized established case law,” the appeals court ruling said.
The appeals court ruling stems from Lorain County Prosecutor Dennis Will’s Office asking the court to review the judge’s decision.
The prosecution cannot appeal the acquittal, Will said, so the appeals court decision will not affect the defendant.
But the prosecution argued Burge “applied the incorrect standard of penetration in a rape case in direct contradiction” of Ohio case law.
“We argued simply that he used the wrong standard,” Will said.
“You can’t continue to utilize this standard because it’s the wrong standard,” he added. “We wanted them to clarify that and they did.”
The case dealt with Samuel J. Nieves, now 30, who lived in Lorain when he was indicted for rape and gross sexual imposition, according to the appeals court ruling and Lorain County court records.
At trial, the victim testified that Nieves, whom she knew, lured her and a friend into his apartment under false pretenses, according to the ruling.
“She testified that, after sending her friend off to buy food, Nieves pushed her down onto a couch; pulled off her pants, underwear and shoes; and took off his own shorts,” the ruling stated.
Nieves attempted the force the woman to have sex, but he “was not able to fully” complete the act “because she was fighting him,” the ruling stated. During questioning, the victim “agreed that Nieves touched his ‘private parts’ with hers,” the ruling stated.
In the bench trial, Burge granted a defense motion to acquit Nieves of rape, but ruled he was guilty of gross sexual imposition, according to court records.
However, the appeals court ruled he “eschewed established precedent” by refusing to recognize the legal definition of penile penetration for rape.
The ruling quoted the judge as saying: “That is for oral sex. In fact, there needn’t be any penetration. However, the statute, notwithstanding what judge — some judge might think, says that rape is the penetration of the vaginal cavity. The vaginal cavity begins at the introitus, which is well beyond the labia. So to that extent, I don’t care what anybody says, I’m right. In fact, the more I talk, the righter I get.”
“Accordingly, in the face of such an expressed disregard for the precedent of this higher court, such action is not only capable of repetition, but is highly likely to be repeated by this particular trial judge,” the appeals ruling stated.
With the ruling, the appeals court judges put courts on notice to use the proper legal standard in judging rape cases, Will said.
As for Nieves, in November 2012 he was sentenced to 17 months in prison; he was granted judicial release on March 4 of this year, according to court records.